Parl panel wants 'illegitimate' child reference removed, law on guardianship

New Delhi [India], August 8 : A Parliamentary Committee has raised strong objection to the term 'illegitimate' being used in the Hindu Minority and Guardianship Act (HMGA) and suggested the government omit the word, "as no child is illegitimate, asserting that "the law should be the same for all children whether born within or out of wedlock".
The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, headed by Rajya Sabha MP Sushil Kumar Modi, made its observations in the One Hundred Eighteenth Report on 'Review of Guardianship and Adoption Laws'. The report was submitted on Monday in both Houses of Parliament.
The Committee notes that "Section 3(1) of the Hindu Minority and Guardianship Act makes use of the term 'illegitimate' in reference to a child born out of wedlock".
"The Committee strongly feels that the word 'Illegitimate' should be omitted as no child is illegitimate and the law should be the same for all children whether born within or out of wedlock," the report reads.
The Committee is of the considered view that Section 6 of the HMGA lays down that in the case of a Hindu minor boy and a Hindu minor unmarried girl, the father is the natural guardian and 'after' him the mother, it mentioned.
"Section 7 of the same Act provides that the natural guardianship of an adopted son who is a minor, passes, on adoption, to the adopted father and 'after' him to the adoptive mother. The said Act does not provide for joint guardianship nor does it recognize the mother as the guardian of the minor legitimate child unless the father is deceased or is found unfit. Since the Act gives preference to father over mother, it goes against the Right to Equality and Right against discrimination envisaged under Articles 14 and 15 of the Constitution."
Further, the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) envisages that state parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, the report observed, and said "the Committee feels that there is an urgent need to amend HMGA and accord equal treatment to both mother and father as natural guardians".
The Committee is of the view that under the Guardians and Wards Act, parental authority supersedes the welfare principle, while under the HMGA, the welfare principle is of paramount consideration in determining guardianship. Thus, for deciding questions of guardianship for Hindu children, their welfare is of paramount consideration which will override parental authority.
But for non-Hindu children, the Court's authority to intervene in furtherance of the welfare principle is subordinated to that of the father, as the natural guardian. However, what constitutes the 'Welfare' of the child is undefined. The Committee feels that there is a need to amend the Guardians and Wards Act to give primacy to the 'welfare principle' over parental authority.
The Committee is of the view that there is a need to define what constitutes the 'Welfare' of the child in broader terms in both the Acts.
"The Committee is of the view that the recommendation made by the Law Commission be taken into consideration that provisions relating to Custody, child support, and visitation arrangements should be incorporated in the Guardians and Wards Act. Parents should be granted equal rights with respect to guardianship and custody," the official data read.
"The Act should empower the Courts to award joint custody to both the parents in circumstances conducive to the welfare of the child, or award sole custody to one parent with visitation rights to the other. The Act must also empower the Courts to fix an amount specifically for child support to meet basic expenses of the child," said the report.
The Committee feels that there is a need to enact a single comprehensive law covering guardianship aspects of various categories of persons and applicable to all irrespective of religion, says the report, adding "the Committee is of the view that the Act must facilitate guardianship of elderly persons as there may be circumstances where a senior citizen may reach a stage where the health concerns become overwhelming and they may need a guardian to take care of their health and well being, for instance, an elderly person diagnosed with dementia or lying in a vegetative state or an aged parent abandoned by his children".
"The Committee also recommends that timelines may be stipulated in the Act for Courts within which the application for Guardianship of the person or/and property of the minor or application for the removal of a guardian is to be disposed of by the Court to ensure speedy disposal of cases," the official data read.
The Committee is of the considered opinion that if the proposed Law on Guardianship is to cover majors, then it should also provide for what is now known as 'Supported Decision making', a system gaining popularity in many countries around the world, it said.
Noting that it is an alternative to guardianship, the report said, "A person using supported decision-making appoints trusted advisors, such as friends, family, or professionals, to serve as supporters. Instead of having a guardian make choices for them, the person takes the help of supporters who help them make their own choices."